Disciplinary Counsel v. Brown

[This opinion has been published in Ohio Official Reports at 87 Ohio St.3d 316.]

OFFICE OF DISCIPLINARY COUNSEL V. BROWN

[Cite as Disciplinary Counsel v. Brown, 1999-Ohio-74.]

Attorneys at law—Misconduct—Permanent disbarment—Engaging in illegal

conduct involving moral turpitude—Engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation—Engaging in conduct

prejudicial to the administration of justice—Engaging in conduct

adversely reflecting on fitness to practice law—Failing to deliver all

papers and property to which client is entitled—Failing to promptly

refund any part of a fee paid in advance that has not been earned—

Neglecting an entrusted legal matter—Failing to seek lawful objectives of

client—Neglecting or refusing to assist in disciplinary investigation.

(No. 99-1572—Submitted October 12, 1999—Decided December 22, 1999.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 98-100.

__________________

{¶ 1} The following facts gave rise to the disciplinary charges brought

against the respondent, Bruce E. Brown of Shaker Heights, Ohio, Attorney

Registration No. 0039782. In 1997, Delphine Coleman retained respondent to

expunge two criminal convictions from her record. Coleman paid respondent in

full, and respondent gave Coleman a copy of an application for expungement. The

following month, however, Coleman was denied a residential lease on the basis of

her criminal record. Coleman later discovered that the court had no records

showing that her application for expungement had ever been filed. Coleman called

respondent on more than one occasion to inquire about the problem, but respondent

was reachable only through a pager, and rarely returned Coleman’s calls.

SUPREME COURT OF OHIO

Eventually, Coleman fired respondent and requested that he refund her money and

return her file. Respondent, however, refused to do either.

{¶ 2} Coleman complained to relator, Office of Disciplinary Counsel,

which sent a letter of inquiry to respondent. Respondent, however, failed to

respond to relator’s first letter of inquiry. Accordingly, relator sent a second letter

of inquiry to respondent, and this time respondent provided a response. Relator

then served respondent with a subpoena duces tecum ordering him to appear for a

deposition in October 1997. Respondent failed to appear for the deposition, even

though he had assured relator that he would be present. Eventually, respondent

appeared at a rescheduled deposition. At that time, respondent conceded that he

had received relator’s first letter of inquiry, as well as the subpoena for the original

deposition.

{¶ 3} At the rescheduled deposition, respondent claimed that some of his

conduct resulted from his addiction to cocaine, which he had started using in law

school. For example, respondent claimed that he had traveled to Columbus with

the intention to attend the originally scheduled deposition but that he had missed

the deposition after he used cocaine that day. Respondent also admitted that his

addiction to cocaine caused him to miss one or two court appearances for other

clients but that he was able either to contact the court with an excuse for his

nonappearance or secure a replacement on those occasions.

{¶ 4} Respondent testified that he had stopped using cocaine a few months

before, though unaccompanied by any treatment or counseling. Respondent

admitted that although Disciplinary Counsel had previously provided contact

information for the Ohio Lawyers Assistance Program (“OLAP”), he had failed to

contact OLAP before the deposition. Once again, Disciplinary Counsel urged

respondent to contact OLAP, and he agreed, but later refused to participate in the

rehabilitative program.

2

January Term, 1999

{¶ 5} At his deposition, respondent also admitted that he had been

sanctioned on three previous occasions for failing to meet Ohio’s continuing legal

education requirements and that this conduct resulted in a temporary suspension

from the practice of law in Ohio from August 1995 to November 1996.

{¶ 6} Relator charged respondent with violating several Disciplinary Rules,

as well as a Rule for the Government of the Bar. Respondent failed to answer, and

the matter was submitted to a panel of the Board of Commissioners on Grievances

and Discipline of the Supreme Court (“board”) on the complaint, relator’s motion

for default judgment, and attached exhibits.

{¶ 7} The panel found the facts as previously set forth and concluded that

respondent’s conduct violated DR 1-102(A)(3) (engaging in illegal conduct

involving moral turpitude), 1-102(A)(4) (engaging in conduct involving dishonesty,

fraud, deceit, or misrepresentation), 1-102(A)(5) (engaging in conduct that is

prejudicial to the administration of justice), 1-102(A)(6) (engaging in conduct

adversely reflecting on a lawyer’s fitness to practice law) (two violations), 2-

110(A)(2) (upon withdrawal, failing to deliver all papers and property to which the

client is entitled), 2-110(A)(3) (upon withdrawal, failing to promptly refund any part

of a fee paid in advance that has not been earned), 6-101(A)(3) (neglecting an

entrusted legal matter), 7-101(A)(1) (failing to seek the lawful objectives of the

client), and Gov.Bar R. V(4)(G) (neglecting or refusing to assist in a disciplinary

investigation). In mitigation, the panel found that respondent’s conduct was

“apparently caused” by his cocaine addiction.

{¶ 8} Disciplinary Counsel requested that respondent be permanently

disbarred. The panel recommended, however, that respondent be indefinitely

suspended from the practice of law in Ohio. The board adopted the findings,

conclusions, and recommendation of the panel.

__________________

3

SUPREME COURT OF OHIO

Jonathan E. Coughlan, Disciplinary Counsel, and Kenneth R. Donchatz,

Assistant Disciplinary Counsel, for relator.

Bruce E. Brown, pro se.

__________________

COOK, J.

{¶ 9} We adopt the findings and conclusions of the board, but we determine

that disbarment is the appropriate sanction in this case. In Part I, we demonstrate

that our decision to disbar respondent in this case comports with sanctions we have

imposed in previous cases involving comparable ethical violations. In Part II, we

support our determination with the methodology employed in the ABA Standards

for Imposing Lawyer Sanctions, which closely track guidelines for sanctions that

were recently proposed for adoption by the Board of Commissioners on Grievances

and Discipline of the Supreme Court.

I

{¶ 10} Although we decide disciplinary matters on a case-by-case basis,

other similar disciplinary proceedings are helpful in determining sanctions.

Disciplinary Counsel v. Gallagher (1998), 82 Ohio St.3d 51, 693 N.E.2d 1078.

Already this year, we have disbarred an attorney for violations similar to those in

the case at bar. Columbus Bar Assn. v. James (1999), 84 Ohio St.3d 379, 704

N.E.2d 241. Like the respondent here, the attorney disbarred in James exhibited a

history of substance abuse, neglected his clients’ interests, failed to attend

scheduled court appearances, failed to cooperate in the disciplinary investigation of

his misconduct, and failed to complete a voluntary drug rehabilitation program.

Although the respondent in James also entered a guilty plea to a felony charge for

cocaine possession, formal criminal charges or convictions are not a prerequisite to

disbarment. Ohio State Bar Assn. v. Weaver (1975), 41 Ohio St.2d 97, 100, 70

O.O.2d 175, 177, 322 N.E.2d 665, 667. The court’s purpose in a disciplinary

4

January Term, 1999

proceeding is “not to enforce the criminal code, but rather to investigate the conduct

and fitness of one of its officers.” Id.

{¶ 11} In another recent case, we disbarred an attorney who neglected legal

matters, failed to rectify his client’s complaints, returned a client file in disarray,

billed clients for services not performed, and failed to cooperate in the disciplinary

investigation of his conduct. Cuyahoga Cty. Bar Assn. v. Clower (1998), 84 Ohio

St.3d 151, 702 N.E.2d 412. Like the respondent in the case at bar, the respondent

in Clower also failed to answer the disciplinary complaint, and thus faced a motion

for default filed by the board.

{¶ 12} Based on our precedent, we also conclude that the respondent’s

chemical dependency does not qualify as a mitigating factor here. In a recent

disciplinary case involving a chemically dependent former judge, we noted that

“[g]enerally, we do temper our decision where substance abuse is involved and the

respondent has demonstrated a commitment to sobriety.” (Emphasis added.)

Disciplinary Counsel v. Gallagher (1998), 82 Ohio St.3d 51, 53, 693 N.E.2d 1078,

1079.

{¶ 13} In this case, respondent admitted drug use, but did not demonstrate

a commitment to sobriety. Respondent here failed to contact OLAP when he

initially received information about the program from Disciplinary Counsel. At the

rescheduled deposition, Disciplinary Counsel reminded respondent that his failure

to seek rehabilitative assistance could have serious ramifications not only for his

addiction, but also for his license to practice law. Respondent refused to seek

assistance. We do not view respondent’s chemical dependency as a mitigating

factor.

II

{¶ 14} Our decision to disbar respondent for his violations of our state’s

Disciplinary Rules also comports with the American Bar Association’s Standards

for Imposing Lawyer Sanctions (“ABA Standards”). American Bar Association

5

SUPREME COURT OF OHIO

Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions

(1991 & Amend.1992), Standard 9.3, and Commentary to Standard 9.32. The ABA

Joint Committee on Professional Sanctions developed the ABA Standards to

alleviate some of the inconsistencies in attorney discipline that can arise both within

and across jurisdictions, due to the unique factual circumstances underlying each

case. Id., Preface at 1. Inconsistent sanctions harm the efficacy and credibility of

disciplinary systems. Sanctions that are too lenient fail to adequately deter

misconduct, and sanctions that are too onerous can impair confidence in the system

and deter attorneys from reporting misconduct. Id.

{¶ 15} The ABA Standards suggest that courts adhere to a four-step

methodology when imposing sanctions for attorney misconduct. First, the court is

to determine which ethical duties were violated by the attorney. Second, the court

examines the attorney’s mental state at the time of the violations. Third, the court

assesses the extent of the actual or potential injury caused by the lawyer’s

misconduct. Equipped with this information, the court makes an initial

determination as to the appropriate sanction. Finally, in the fourth step, the court

examines any aggravating or mitigating circumstances and arrives at a final

determination. Id., Theoretical Framework at 5. In Part A, below, we undertake

the first three steps of the ABA Standards methodology and reach an initial

determination that disbarment is the appropriate sanction in the present case. We

apply step four in Part B to support our conclusion that respondent’s chemical

dependency does not qualify as a mitigating factor in this case.

A

{¶ 16} Under the first step of the model for sanctions, the ABA Standards

ask whether the attorney violated a duty to his client, the public, the legal system,

or the profession. Id. Respondent violated the duty of diligence that he owed to

his client when he failed to file the expungement, an entrusted legal matter, in

violation of DR 6-101(A)(3). Under step two of the ABA Standards, our review of

6

January Term, 1999

the record indicates that this was a knowing violation. Respondent had received

phone calls from the client regarding this matter, and admitted at his deposition that

he knew the expungement document was “once again lost.” Respondent also

admitted having confrontational conversations with Coleman, and even anticipated

that she would file a complaint with the grievance board. As for injury, which

constitutes step three of the ABA Standards approach, respondent’s knowing

violation of his duty of diligence resulted in potentially serious injury to Coleman,

who was denied a residential lease on the basis of her record, and then was unable

to contact respondent for redress or to obtain her file.

{¶ 17} As the following excerpt indicates, the ABA Standards recommend

an initial determination of disbarment in such cases:

“Disbarment is generally appropriate when:

“(a) a lawyer abandons the practice and causes serious or potentially serious

injury to a client; or

“(b) a lawyer knowingly fails to perform services for a client and causes

serious or potentially serious injury to a client; or

“(c) a lawyer engages in a pattern of neglect with respect to client matters

and causes serious or potentially serious injury to a client.” Standard 4.41.

{¶ 18} The first three steps of the methodology suggested by the ABA

Standards, then, support disbarring respondent for his breach of his duty to

Coleman in violation of DR 6-101(A)(3). Respondent, however, also violated

duties to the public (engaging in illegal conduct involving moral turpitude, DR 1-

102[A][3]), the legal system (engaging in conduct adversely reflecting on the

lawyer’s fitness to practice law, DR 1-102[A][6]), and the profession (neglecting

or refusing to assist in a disciplinary investigation, Gov.Bar R. V[4][6]), among

other violations. Respondent’s knowing violations of these additional duties also

support the sanction of disbarment.

7

SUPREME COURT OF OHIO

B

{¶ 19} Once we determine the sanction that respondent’s conduct warrants,

the ABA Standards suggest that the court then consider aggravating and mitigating

circumstances to determine whether that sanction should be adjusted. ABA

Standards, Theoretical Framework, at 6. The ABA approach is entirely consistent

with this court’s history of considering aggravating and mitigating factors before

adopting, increasing, or decreasing the sanction recommended by the board.1

Standard 9.0 collects the aggravating and mitigating factors into helpful lists that

organize and focus what is an inherently factual determination. We note that this

strategy—collecting aggravated and mitigating circumstances into manageable

lists—resembles the board’s recently proposed Guidelines for Imposing Lawyer

Sanctions (“Ohio Guidelines”), which recite the ABA Standards’ lists of

aggravating and mitigating circumstances nearly verbatim. Cf. Board of

Commissioners on Grievances and Discipline, Proposed Rules and Regulations

Governing Procedure on Complaints and Hearings, Section 10, Guidelines for

Imposing Lawyer Sanctions; ABA Standards for Imposing Lawyer Sanctions (1992

Amend.), Standards 9.2 and 9.3. At the time of writing this opinion, these Ohio

Guidelines had been approved for public comment by this court.

{¶ 20} Chemical dependency is one of the mitigating factors recognized in

both the Ohio Guidelines2 and the ABA Standards (Standard 9.32[I]). Like the

1. As mitigating factors, this court has recognized, among others, cooperation with disciplinary

authorities (Bar Assn. of Greater Cleveland v. Sanders [1986], 24 Ohio St.3d 5, 24 OBR 4, 492

N.E.2d 449); restitution (Stark Cty. Bar Assn. v. Whitaker [1986], 26 Ohio St.3d 1, 26 OBR 1, 496

N.E.2d 891); and remorse (Bar Assn. of Greater Cleveland v. Sanders, supra). As aggravating

factors, this court has recognized, among others, failure to cooperate with disciplinary authorities

(Toledo Bar Assn. v. Wood [1987], 32 Ohio St.3d 166, 512 N.E.2d 671); prior misconduct (Toledo

Bar Assn. v. Westmeyer [1991], 58 Ohio St.3d 38, 567 N.E.2d 1016); and lack of candor (Stark Cty.

Bar Assn. v. Osborne [1991], 62 Ohio St.3d 77, 578 N.E.2d 455).

2. The other seven mitigating factors listed in the Ohio Guidelines are absence of a prior disciplinary

record, absence of a dishonest or selfish motive, timely good faith effort to make restitution or to

rectify consequences of misconduct, full and free disclosure to disciplinary board or cooperative

8

January Term, 1999

ABA Standards, the Ohio Guidelines encourage the board to consider chemical

dependency as a mitigating factor, but only under limited circumstances. Ohio

Guidelines at Section 10(B)(7). Before the board recommends a less severe

sanction on the basis of addiction, the Ohio Guidelines recommend that the board

determine whether the respondent’s chemical dependency satisfies a three-part

threshold showing. First, the Ohio Guidelines call for a diagnosis by a qualified

health care professional that the respondent is indeed chemically dependent.

Second, as reflected in our case law requiring a “commitment to sobriety,” the Ohio

Guidelines call for the respondent to produce a certificate indicating the successful

completion of an approved treatment program. Finally, the Ohio Guidelines call

for a prognosis from a qualified health care professional or substance abuse

counselor that the respondent will be able to return to competent, ethical,

professional practice under specified conditions. Id.

{¶ 21} If these Ohio Guidelines were applied to respondent, the record

shows that respondent would not satisfy any of the elements in the board’s threshold

test for consideration of chemical dependency as a mitigating factor. The record

here lacks an official diagnosis of chemical dependency, a certificate of completion

from a treatment program, or a prognosis of future competent practice. We do not

suggest here that the board erred when it adopted the panel’s finding of chemical

dependency as a mitigating circumstance in this case, because the Ohio Guidelines

had not been formally adopted at the time of the board’s recommendation in this

case.3

attitude toward proceedings, character or reputation, imposition of other penalties or sanctions, and

other interim rehabilitation. Ohio Guidelines, at Section 10(B)(7).

3. We also note that the record supports a finding of several aggravating factors listed in the Ohio

Guidelines but absent from the board and panel reports. These include the respondent’s prior

disciplinary offenses, a pattern of misconduct, and a lack of cooperation in the disciplinary process.

As for additional mitigating factors listed in the Ohio Guidelines, we note from the record that the

respondent freely disclosed his cocaine dependency at the rescheduled deposition.

9

SUPREME COURT OF OHIO

{¶ 22} With no mitigating factors to affect the appropriate sanction of

disbarment, respondent is hereby permanently disbarred from the practice of law in

Ohio. Costs taxed to respondent.

Judgment accordingly.

MOYER, C.J., RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.

DOUGLAS and F.E. SWEENEY, JJ., dissent and would order an indefinite

suspension against respondent as recommended by the board.

__________________

10